Public Policy Exception to At-Will Employment Doctrine in Virginia

In Virginia, employment relationships are presumed to be “at will,” which means that the employment term extends for an indefinite period and may be terminated by either party for any reason, or no reason at all, upon reasonable notice. Virginia courts “have strenuously adhered” to the presumption of at-will employment. See Nguyen v.CNA Corp., 44 F.3d 234, 237-38 (4th Cir. 1995). Virginia courts have relied on an underlying theory that stresses the freedom of contract: “An employee is ordinarily at liberty to leave his employment for any reason or for no reason, upon giving reasonable notice, without incurring liability to his employer.” Miller v. SEVAMP, Inc., 362 S.E.2d 915, 917 (Va. 1987).

Virginia courts have found an exception to the at-will employment relationship if the termination violates a well-defined public policy of the state or violates Virginia statutory authority. Statutes expressing a public policy sufficient to form the basis of a wrongful discharge claim fall into two categories: (1) a statute explicitly stating that it expresses a public policy; and (2) statutes that do not explicitly state a public policy, but rather are “designed to protect property rights, personal freedoms, health, safety or welfare of the people in general.” Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 104, 439 S.E.2d 328, 331 (1994).

In Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985), the Virginia Supreme Court first recognized a narrow public policy exception to the employment at-will doctrine, and held that the plaintiffs’ employer was liable for wrongful discharge after it had terminated plaintiffs in violation of public policy. There, the plaintiffs were stockholders in the bank corporation that employed them and they were terminated for refusing to vote their stock in accordance with the demands of management. The court reasoned that the employees’ termination violated the public policy expressed in Virginia securities law, which allows stockholders the right to vote their shares free from duress and intimidation by corporate management.

Recently, the Supreme Court of Virginia reaffirmed that the public policy exception is a narrow one in Francis v. National Accrediting Commission of Career Arts & Sciences, Inc. 293 Va. 167, 175, 796 S.E.2d 188, 192 (2017). In Francis, the plaintiff was an at-will employee who claimed a co-worker confronted her, yelled obscenities, and threatened bodily harm. The plaintiff filed a petition for and received a preliminary protective order (PPO) against the co-worker. A few days later, the company terminated the plaintiff because she “did not fit the vision of the organization.” The plaintiff filed suit against her employer, claiming wrongful termination under Bowman, arguing that she was discharged in violation of public policy embodied in Virginia’s protective order statutes. The plaintiff argued that her exercise of her statutory rights in obtaining a PPO was a motivating factor in her termination. The court ultimately held that the plaintiff failed to state a claim for wrongful termination under Bowman. The court reiterated that “while virtually every statute expresses a public policy of some sort, we continue … to hold that termination of an employee in violation of the policy underlying any one statute does not automatically give rise to a common law cause of action for wrongful discharge.”

The court explained that the Bowman public policy exception is only recognized in 3 scenarios: (1) when an employer violated a policy enabling the exercise of an employee’s statutorily created right; (2) when the public policy violated by the employer was explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy; and (3) when the discharge was based on the employee’s refusal to engage in a criminal act.

To make a successful claim under the first scenario, the court must first determine “what right was conferred on an employee by statute, and then whether the employer’s termination of employment violated the public policy underlying that right.” In order for the Francis plaintiff to be successful under this theory, she would have to argue that her termination violated the public policy underlying the rights conferred to her in the protected order statutes. However, the public policy of the protective order statutes is to protect the health and safety of the petitioner and his family. For the public policy exception to apply, the plaintiff must show that her termination violated that stated public policy of protection of health and safety, which she did not. Rather, the plaintiff argued that she was terminated because of her exercise of her statutory rights in obtaining a PPO, but the protective order statute does not include a public policy of protecting the exercise of the right to seek a protective order. Since the public policy exception does not recognize “a generalized cause of action for the tort of retaliatory discharge,” the plaintiff did not make a successful claim under Bowman.

The court’s decision in Francis showed an unwillingness to expand the scope of the public policy exception to Virginia’s at will-employment rule. This is likely encouraging for Virginia employers. However, wrongful discharge matters can still be complicated, and employers should continue to be mindful of applicable public policies when making termination decisions for at-will employees.

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Whether you are an employer or employee involved in a potential wrongful discharge matter, attorneys at General Counsel PC can provide you with the knowledge and assistance necessary protect your rights. Our attorneys are specialized in labor and employment law and have experience working with employees and employers across Virginia, specifically in Fairfax County, Arlington, Loudoun County, and Prince William. Call General Counsel PC at 703-556-0411 today to see how we can help you.